PEOPLE v HABEL (ON REHEARING)
Docket No. 15588
Court of Appeals of Michigan
Decided November 29, 1973
Opinion on rehearing filed May 29, 1974
53 Mich App 399
1. CRIMINAL LAW—ENTRAPMENT—QUESTION FOR COURT.
Entrаpment of a defendant is an issue to be determined by the trial judge, not by the jury.
CONCURRENCE BY HOLBROOK, P. J.
2. CRIMINAL LAW—ENTRAPMENT—OBJECTIVE TEST—PROSPECTIVE APPLICATION.
A ruling of the Michigan Supreme Court which holds that the test of entrapment is objective is prospective only.
Appеal from Muskegon, Charles A. Larnard, J. Submitted Division 3 October 3, 1973, at Grand Rapids. (Docket No. 15588.) Decided November 29, 1973. Opinion on rehearing filеd May 29, 1974.
Bruce Habel was convicted of illegally delivering heroin. Defendant appeals. Reversed and remanded, 50 Mich App 630 (1973). On rehearing, original opinion modified on the issue of entrapment.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Richard J. Pasarela, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Howard C. Marderosian, Acting Direсtor, of counsel), for the people.
Balgooyen, Daniels & Balgooyen, P. C., for defendant.
REFERENCE FOR POINTS IN HEADNOTES
[1, 2] 21 Am Jur 2d, Criminal Law §§ 143, 144.
ON REHEARING
BASHARA, J. This case is on rehearing by our grant thereof. The facts and original decisionаl holding are to be found at 50 Mich App 630; 213 NW2d 822 (1973).
The prosecuting attorney takes exception to the following language in the original oрinion:
“Finally, we must note that while the learned trial judge used the ‘prе-disposition’ test for entrapment under United States v Richard Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973), thе defendant will be entitled on remand to an instruction defining the ‘objеctive’ test, as recently approved in People v Turner, 390 Mich 7; 210 NW 2d 336 (1973).”
The prosecuting attorney asserts that this language would erroneously submit the issue оf entrapment to the jury. He supports his argument with the following language by Justice Potter Stewart in Russell, supra:
“Phrased another way, the question is whеther—regardless of the predisposition to crime of the рarticular defendant involved—the governmental agents havе acted in such a way as is likely to instigate or create а criminal offense. Under this approach, the determinatiоn of the lawfulness of the Government‘s conduct must be made—as it is on all questions involving the legality of law enforcement methods—by the trial judge, not the jury.” 411 US at 441; 93 S Ct at 1647; 36 L Ed 2d at 379.
Although our Supreme Court in Turner, supra,
The Supreme Court оf Michigan has determined that the courts of this state are to be bound by the test of entrapment set forth in a dissenting opinion of the United States Supreme Court. The only logical conclusion to which this panel can come is that our Supreme Court must havе intended that the language of Justice Stewart, above quoted, should also prevail on the issue of the judge-jury matter.
We, therefore, direct that upon the occasion of the new triаl previously ordered in this cause for other reasons it shall be the province of the trial judge to determine the legality of law enforcement methods used to obtain an arrest.
We affirm our prior opinion except as to the issue of entrаpment, discussed herein.
O‘HARA, J., concurred.
HOLBROOK, P. J. (concurring). This writer concurs in the result reached by my Brothers in this case on rehearing. The reason this concurring oрinion is written is to reiterate that this writer is still of the opinion that People v Turner, 390 Mich 7; 210 NW2d 336 (1973), is not retroactive, but is prospective only. People v Gaines, 53 Mich App 443; 220 NW2d 76 (1974).